The applicant is an Irish citizen born in 1966 and at the time of the case was serving a prison sentence in Northern Ireland. The applicant has an extensive criminal record. This record includes some 132 road traffic offences, one offence of conspiracy to robbery, four of burglary, eight of theft and 14 of going equipped for theft, together with other miscellaneous convictions.
On 13 June 2003, the applicant, with other co-defendants, was acquitted of offences of obtaining services and property by deception. The restraint order imposed on the applicant’s property pending any eventual confiscation order on conviction was discharged.
On 2 July 2003, the Assets Recovery Agency served a summons on the applicant for the purposes of recovery proceedings. The Agency sought recovery of the sum of GBP 70,250 allegedly paid to his solicitor in 2001 for buying a house and the sum of GBP 5,969.10 held in a bank account, alleging that these were the proceeds of unlawful conduct within the meaning of the Proceeds of Crime Act 2002 (“POCA”).
At an interlocutory hearing, it was contended on behalf of the applicant, that the proceedings for recovery of his assets were not “civil” but criminal in nature and that the guarantees of Articles 6. 1 and 6.2 (Right to a fair trial )applied, in particular as regarded the standard of proof.
On 1 April 2004, the High Court judge rejected the applicant’s claims stating that there was no criminal charge being determined in the recovery proceedings.
On 26 June 2005, the Court of Appeal in Northern Ireland also rejected the applicant’s appeal. It found, applying the Engel criteria, that in domestic law the proceedings were classified as civil, not involving the preferring of a criminal charge in a criminal setting, or giving rise to any criminal record; that the purpose of the proceedings was not to make him amenable to punishment for a specific crime by way of imprisonment or a fine but that they were restitutionary in nature seeking the recovery of assets acquired through criminal conduct.. As to the nature of any penalty, while the recovery of assets could readily be described as a preventative measure, it considered that even if the proceedings did impose a penalty that this was not sufficient to classify the proceedings as criminal for the purposes of Article 6 of the Convention.
In addition it concluded that cumulatively the proceedings were also not criminal in nature. The House of Lords refused leave to appeal.
The applicant complained to the European Court of Justice (the Court) that He complains that he has been denied the presumption of innocence contrary to Article 6 § 2 as the civil standard, not the criminal standard, applied. He complains that the proceedings may be conducted entirely upon affidavit evidence contrary to Article 6.3(d) (the right to examine witnesses); that he was subject to a penalty imposed in respect of conduct that predated the entry into force of domestic legislation (The Proceeds of Crime Act 2002) and that the recovery of his assets in these circumstances infringes Article 1 of Protocol No. 1 (peaceful enjoyment of his possessions).
Royaume-Uni de Grande-Bretagne et d'Irlande du NordEuropean Court of Human Rights
The Court first examined if the recovery proceedings against the applicant involved the determination of a criminal charge. In this regard The Court must have regard, in this context, to the three guiding criteria as to whether a criminal charge has been determined:
-the classification of the matter in domestic law;
-the nature of the charge; and
-the penalty to which the person becomes liable; ((Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 82, ECHR 2003-X, citing Engel and Others v. the Netherlands, judgment of 8 June 1976, Series A no. 22, pp. 34-35, §§ 82-83).
According to relevant domestic law, recovery proceedings are regarded as civil, not criminal. While the proceedings may have followed an acquittal for specific criminal offences but were separate and distinct in timing, procedure and content.
Regarding the second criteria it was noted domestic courts considered that the purpose of the proceedings was not punitive or deterrent but to recover assets which did not lawfully belong to the applicant. The Court also notes that there was no finding of guilt of specific offences and that the High Court judge in making the order was careful not to take into account conduct in respect of which the applicant had been acquitted of any criminal offence.
Lastly, the recovery order was not punitive in nature; while it no doubt involved a considerable sum, the amount of money involved is not itself determinative of the criminal nature of the proceedings.
The proceedings fell outside the criminal head of Article 6.1 of the Convention and that part of the application was rejected as incompatible ratione materiae with the provisions of the Convention.
The Court then reasoned as the proceedings did not involve the determination of a criminal charge claims that the legislation was being imposed retrospectively in violation of Article 7 (prohibition of retrospective criminal penalties) was also rejected as incompatible ratione materiae.
As regards Article 1 of Protocol No. 1, the Court notes that the applicant has not shown that he has raised his complaints about interference with property rights under this provision before the domestic courts, it followed that he has failed to exhaust domestic remedies - and this also meant this complaint must be rejected.
The Court unanimously decided that the application was inadmissible.
The Court noted that while the domestic court stated it did not rely the offences for which the applicant was acquitted i.e. the deception charges (because the domestic court was unable to hear the evidence of a witness) the Court noted the domestic court did place reliance on an act robbery for which Walsh was suspected but never prosecuted for. The Court noted the domestic court was satisfied that his criminal record; his association with criminals with a similar background of offences; and the circumstances of his most recent arrest served; and his inability to satisfactorily account for his wealth convinced the domestic Court that crime had been his primary means of acquiring funds for a number of years and for which a recovery order was made.
While the Court recorded that the domestic court did not place reliance on the conduct which was the subject of the acquittal, the Court did not express any misgivings as regards the reliance that was placed as regards the acts which did not involve the determination of a criminal charge- or indeed a prosecution. In addition there was no debate as to whether the proceedings were criminal in all but name given the appellation of the process under domestic law as civil law based and the Court expressed no misgivings in this regard either. This meant that Articles 6 of the Convention which provides
“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”
cannot be invoked in cases such as this (where the proceedings do not involve the determination of a criminal charge). However the Court also quoted from the domestic judgment which stated the aim of the legislation was to recover the proceeds of crime rather than establish criminal guilt.